Colegio de Oficiales de la Marina Mercante Española v. Administración del Estado (Asociacioón de Navieros Españoles

(ANAVE), Intervening) (Case C-405/01)

Before the Court of Justice of the European Communities

ECJ

Presiding, RodrÍguez Iglesias P.; Puissochet, Wathelet (

Rapporteur), Schintgen and Timmermans PP.C.; Gulmann, Edward, La

Pergola, Jann, Skouris, Macken, Colneric, von Bahr, Cunha Rodrigues and Rosas JJ;

Christine Stix-Hackl, Advocate General

September 30, 2003

Discrimination; Civil service; EC law; Merchant navy; Migrant workers; Nationality H1 Migrant workers--masters and chief mates of merchant navy ships-- conferment of powers of public authority on board-posts reserved for nationals of flag State--posts open to nationals of other Member States on condition of reciprocity--scope of Art.39(4) EC--"employment in the public service"-- strict interpretation--requirement that rights conferred by public law be exercised on a regular basis-- Art.39(3) EC--public policy--not applicable to restrictions on access to employment--requirement of reciprocity precluded by Art.39(2) EC. H2 Reference from Spain by the Tribunal Supremo (Supreme Court) under Art.234 EC. H3 Under Spanish Law 27/1992, citizens of Member States of the EEC were eligible for employment as ships' crew, provided that such employment did not involve, even on an occasional basis, the performance of public duties, which was reserved to Spanish citizens. Article 8 of Royal Decree 2062/1999 provided that recognition of a professional diploma would be required for direct access to employment as a crew-member on board Spanish merchant ships, except for posts which involved or might involve the performance of public duties assigned by law to Spaniards, such as those of master, skipper or chief mate, which would continue to be reserved for Spanish citizens. However, under Art.8(3), citizens of the EU who held a diploma issued by a Member State might have command of certain merchant ships, essentially small ones that were principally cargo carrying and operated close to the Spanish coast, provided that the person concerned could *280 prove that Spanish citizens had reciprocal rights in the State of which he was a national. Several provisions of Spanish law conferred on

masters of Spanish merchant navy ships public duties such as those relating to safety and public order, the notarising of documents and returns of births, marriages and deaths. The Officers' Association of the Spanish Merchant Navy (the Officers' Association) brought an action before the Spanish Supreme Court for the annulment of certain provisions of Royal Decree 2062/1999, arguing that the decree, and in particular Art.8(3) thereof, damaged the collective interests of the officers of the Spanish merchant navy and was contrary to Art.77 of Law 27/1992 in so far as it allowed nationals of other Member States to have command of certain Spanish vessels. The Supreme Court stayed its proceedings to seek a ruling as to whether, given that masters and chief mates of merchant ships only occasionally performed public order duties or duties which, in Spain, were usually entrusted to public officials, the fact that a Member State reserved such employment for its nationals was compatible with Art.39 EC, and whether that provision precluded a Member State making access by nationals of the other Member States to the posts of master and chief mate of merchant ships flying its flag subject to a condition of reciprocity. Held: Concept of public service H4 The concept of public service within the meaning of Art.39(4) EC had to be given uniform interpretation and application throughout the Community and could not therefore be left entirely to the discretion of the Member States. It covered posts which involved direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities and thus presumed on the part of those occupying them the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which formed the foundation of the bond of nationality. It did not cover posts which, whilst coming under the State or other bodies governed by public law, still did not involve any association with tasks belonging to the public service properly so called, nor, a fortiori, to employment by a private natural or legal person, whatever the duties of the employee. [38]-[40] Sotgiu ( 152/73): [1974] E.C.R. 153; Commission v Belgium ( 149/79): [1980] E.C.R. 3881; [1981] 2 C.M.L.R. 413; Commission v Greece ( C-290/94): [1996] E.C.R. I-3285; [1997] 2 C.M.L.R. 999; Commission v Spain ( C-114/97): [1998] E.C.R. I-6717; [1999] 2 C.M.L.R. 701; Commission v Italy ( C-283/99): [2001] E.C.R. I-4363, followed. Strict construction of Art.39(4) EC H5 As a derogation from the fundamental principle that workers in the Community should enjoy freedom of movement and not suffer discrimination, Art.39(4) EC had to be construed in such a way as to limit its scope to what was strictly necessary for safeguarding the interests which that provision allowed the Member States to protect. [41] *281 Commission v Italy ( 225/85): [1987] E.C.R. 2625; [1988] 3 C.M.L.R. 635, followed. Derogation requiring that public law powers be exercised on a regular basis H6 (a) Spanish law conferred on masters and chief mates of merchant ships flying the Spanish flag rights connected to the maintenance of safety and to the exercise of police powers, and authority in respect of notarial matters and the registration of births, marriages and deaths, which could not be explained solely by the requirements entailed in commanding the vessel. Such duties constituted participation in the exercise of rights under powers conferred by public law for the purposes of safeguarding the general interests of the flag State. The fact that masters were employed by a private natural or legal person was not, as such, sufficient to exclude the application of Art.39(4) EC since it was established that, in order to perform the public functions delegated to them, masters acted as representatives of public authority, at the service of the general

interests of the flag State. [42]-[43] H7 (b) However, recourse to the derogation from the freedom of movement for workers provided for by Art.39(4) EC could not be justified solely on the ground that rights under powers conferred by public law were granted by national law to holders of the posts in question. It was still necessary that such rights were in fact exercised on a regular basis by those holders and did not represent a very minor part of their activities. The posts of master and chief mate in the Spanish merchant navy were posts in which exercise of the duty of representing the flag State was, in practice, only occasional. Furthermore, the United Nations Convention on the Law of the Sea did not require that a ship's master be a national of the flag State. [44]-[46] Scope of Art.39(3) EC H8 The right of Member States to restrict freedom of movement for persons on grounds of public policy, public security or public health was not intended to exclude economic sectors such as that of merchant shipping, or occupations, such as that of master or chief mate of merchantmen from the application of that principle in relation to access to employment, but to allow Member States to refuse access to their territory or residence there to persons whose access or residence would in itself constitute a danger for public policy, public security or public health. Thus, a general exclusion from access to the posts of master and chief mate in the merchant navy could not be justified on the grounds mentioned in Art.39(3) EC [48]-[49] Gül ( 131/85): [1986] E.C.R. 1573; [1987] 1 C.M.L.R. 501; Commission v Spain ( C-114/97): [1998] E.C.R. I-6717; [1999] 2 C.M.L.R. 701, followed. Reciprocity H9 Implementation of the obligations imposed on Member States by the Treaty or secondary legislation, such as the obligations arising under Art.39(2) EC, could not be made subject to a condition of reciprocity [59]-[60] Portugal v Commission ( C-163/99): [2001] E.C.R. I-2613; [2002] 4 C.M.L.R. 31; Commission v Italy ( C-142/01): [2002] E.C.R. I-4541, followed. *282 H10 Cases referred to in the judgment: 1. Commission of the European Communities v Belgium (Re Public Employees) ( 149/79), December 17, 1980: [1980] E.C.R. 3881; [1981] 2 C.M.L.R. 413 2. Commission of the European Communities v Greece (Re Freedom of Movement of Workers) ( C-290/94), July 2, 1996: [1996] E.C.R. I-3285; [1997] 2 C.M.L.R. 999 3. Commission of the European Communities v Italy (Re Employees of the Consiglio Nazionale delle Ricerche (National Research Council)) ( 225/85), June 16, 1987: [1987] E.C.R. 2625; [1988] 3 C.M.L.R. 635 4. Commission of the European Communities v Italy ( C-283/99), May 31, 2001: [2001] E.C.R. I-4363 5. Commission of the European Communities v Italy ( C-142/01), May 16, 2002: [2002] E.C.R. I-4541 6. Commission of the European Communities v Spain ( C-114/97), October 29, 1998: [1998] E.C.R. I-6717; [1999] 2 C.M.L.R. 701 7. Cowan v Tresor Public ( 186/87), February 2, 1989: [1989] E.C.R. 195; [1990] 2 C.M.L.R. 613 8. Gül v Regierungsprasident Dusseldorf ( 131/85), May 7, 1986: [1986] E.C.R. 1573; [1987] 1 C.M.L.R. 501 9. Frilli v Brown ( 1/72), June 22, 1972: [1972] E.C.R. 457; [1973] C.M.L.R. 386 10. Portugal v Commission of the European Communities (Re Landing Fees at Portugese Airports) ( C-163/99), March 29, 2001: [2001] E.C.R. I-2613; [2002] 4 C.M.L.R. 31

11. Scholz v Opera Universitaria di Cagliari ( C-419/92), February 23, 1994: [1994] E.C.R. I-505; [1994] 1 C.M.L.R. 873 12. Sotgiu v Deutsche Bundepost ( 152/73), February 12, 1974: [1974] E.C.R. 153 H11 Further cases referred to by the Advocate General: 13. Clean Car Autoservice v Landeshauptmann von Wien ( C-350/96), May 7, 1998: [1998] E.C.R. I-2521; [1998] 2 C.M.L.R. 637 14. Commission of the European Communities v Belgium ( C-37/93), December 1, 1993: [1993] E.C.R. I-6295 15. Commission of the European Communities v France (Re Restrictions on Imports of Lamb) ( 232/78), September 25, 1979: [1979] E.C.R. 2729; [1980] 1 C.M.L.R. 418 16. Commission of the European Communities v France (Re French Nurses) ( 307/84), June 3, 1986: [1986] E.C.R. 1725; [1987] 3 C.M.L.R. 555 17. Commission of the European Communities v Germany (Re Butter Ships (No. 2)) ( 325/82), February 14, 1984: [1984] E.C.R. 777; [1985] 2 C.M.L.R. 719 18. Commission of the European Communities v Greece ( C-187/96), March 12, 1998: [1998] E.C.R. I-1095 19. Commission of the European Communities v Italy (Re Restrictions on Foreign Securities Dealers) ( C-101/94), June 6, 1996: [1996] E.C.R. I-2691; [1996] 3 C.M.L.R. 754 20. Commission of the European Communities v Luxembourg (Re Public Service Employment) ( C-473/93), July 2, 1996: [1996] E.C.R. I-3207; [1996] 3 C.M.L.R. 981 *283 21. Distribuidores Cinematográficos v Spain ( C-17/92), May 4, 1993: [1993] E.C.R. I-2239 22. Grahame and Hollanders v Bestuur van de Nieuwe Algemene Bedrijfsvereniging ( C-248/96), November 13, 1997: [1997] E.C.R. I-6407 23. Krüger GmbH & Co KG v Hauptzollamt Hamburg-Jonas ( C-334/95), July 17, 1997: [1997] E.C.R. I-4517; [1998] 1 C.M.L.R. 520 24. Lawrie-Blum v Land Baden-Wurttenberg ( 66/85), July 3, 1986: [1986] E.C.R. 2121; [1987] 3 C.M.L.R. 389 25. Reyners v Belgium ( 2/74), June 21, 1974: [1974] E.C.R. 631; [1974] 2 C.M.L.R. 305 26. Teckal Srl v Comune di Viano (Reggio Emilia) ( C-107/98), November 18, 1999: [1999] E.C.R. I-8121 H12 Representation N DÍaz Abad, acting as Agent, for the Spanish Government. J Molde and J Bering Liisberg, acting as Agents, for the Danish Government. W-D Plessing and R Stüwe, and (in the oral proceedings only) M Lumma, acting as Agents, for the German Government. E-M Mamouna and S Chala, acting as Agents, for the Greek Government. G de Bergues, A Colomb and C Bergeot-Nunes, acting as Agents, for the French Government. U Leanza, acting as Agent, assisted by G Fiengo, avvocato dello Stato, for the Italian Government. H Seland, acting as Agent, for the Norwegian Government. I MartÍnez del Peral, D Martin, and (in the oral proceedings only) H Kreppel, acting as Agents, for the Commission of the European Communities.

OPINION

I-- Introduction AG1 [FN1]In this action, the Spanish Tribunal Supremo (Supreme Court) (Sala Tercera de lo Contencioso-Administrativo--Third Chamber for Contentious-Administrative Proceedings) essentially seeks to ascertain whether the posts of captain and first officer in the merchant navy are covered by the exclusion relating to employment in the public service contained in Art.39(4) EC, and, accordingly, whether a Member State may reserve such posts to its own nationals. FN1 Opinion of AG Stix-Hackl, delivered on June 12, 2003. AG2 Up to that point, the legal issues raised in this case coincide with those in Anker and Others v Germany, which concerns the lawfulness of a reservation of nationality applicable to ships' captains in small marine shipping and in which I am also delivering my Opinion today. AG3 However, the Spanish Tribunal Supremo goes on to ask whether, in certain cases at least, access to the abovementioned posts in the merchant navy by nationals of other Member States may be made subject to a condition of reciprocity.

A-- Community law AG4 Article 39 EC, which guarantees freedom of movement for workers within the Community, does not apply to employment in the public service, by virtue of para.4 thereof. AG5 Article 1 of Regulation 1612/68 [FN2] contains the following provisions regarding eligibility for employment: "(1) Any national of a Member State, shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State. FN2 Regulation 1612/68 of the Council of October 15, 1968 on freedom of movement for workers within the Community: [1968] O.J. Spec. Ed. (II) 475. (2) He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as nationals of that State." AG6 In accordance with Art.4 of Regulation 1612/68, provisions laid down by law, regulation or administrative action of the Member States which restrict by number or percentage the employment of foreign nationals in any undertaking, branch of activity or region, or at a national level, shall not apply to nationals of the other Member States.

B-- International law AG7 The United Nations Convention on the Law of the Sea of December 10, 1982 (Convention on the Law of the Sea) sets out, inter alia, the following general provisions regarding navigation on the high seas:

"Article 91 Nationality of ships

(1) Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. ...

Article 92 Status of ships (1) Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or *285 in this Convention, shall be subject to its exclusive jurisdiction on the high seas. ...

Article 94 Duties of the flag State (1) Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. (2) In particular every State shall: ... (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. (3) Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea ... Under Art.94(5), in taking the measures concerned, each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance. Article 97 stipulates, inter alia, that, in the event of a collision or any other incident of navigation concerning a ship on the high seas, no penal or disciplinary proceedings may be instituted against [the master or any other person in the service of the ship] except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them."

C-- National law

1. Provisions governing the requirements relating to ships' crews (a) Law No 27/1992 of November 24 on National Ports and the merchant navy (Ley

de Puertos del Estado y de la Marina Mercante) (Law No 27/1992) AG8 As regards ships' crews, Art.77 of Law No 27/1992 provides as follows: "1. The number of crew-members and their professional qualifications must be adequate to ensure at all times the safety of navigation and of the ship, having regard to its technical and operational characteristics, in accordance with the terms established by law. 2. The conditions as to the nationality of ships' crews shall also be determined by regulation, although, from the entry into force of this Law, citizens of Member States of

the European Economic Community shall be *286 eligible for employment as ships' crew, provided that such employment does not involve the exercise, even on an occasional basis, of public duties, which is reserved to Spanish citizens." AG9 The 15th Additional Provision of the aforementioned law provides, inter alia, the following: "The crews of ships entered in the Special Register must have the following characteristics: Nationality: The Captain and First Officer of the ships must, in any event, possess Spanish nationality. At least 50 per cent of the remainder of the crew must be either Spanish or nationals of another Member State of the European Community. ..."

(b) Royal Decree No 2062/1999 of December 30, 1999 governing the minimum level of training in maritime professions (Royal Decree No 2062/1999)

AG10 Article 8 of Royal Decree No 2062/1999 provides: "(1) The Dirección General de la Marina Mercante (Directorate-General of the merchant navy) may expressly recognise the professional diplomas or specialisation certificates of citizens of the European Union issued by one of those States, in accordance with the applicable national provisions. (2) Recognition of a professional diploma, formalised by the issue of a merchant navy professional ticket, will be required for direct access to employment as part of jobs on the crew of Spanish merchant ships, except for posts which involve or may involve the exercise of public duties allocated by law to Spaniards, such as those of captain, master or first bridge officer, which shall remain reserved to Spanish citizens. (3) Notwithstanding the provisions of the previous paragraph, citizens of the European Union who hold a diploma issued by a Member State may have command of merchant ships with a gross tonnage of less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which Spain has sovereignty, sovereign rights or jurisdiction, if the person concerned is able to prove that a reciprocal right in respect of Spanish citizens exists in the State of which he is a national."

2. Rules conferring certain duties and powers on ships' captains in the merchant navy

(a) Rules relating to safety and policing duties

AG11 The provisions concerning safety and policing duties which are outlined below are worthy of note: "Under Arts 100, 116(3)(f), and 127 of Law No 27/1992, captains may, on an exceptional basis, take such policing measures as they deem necessary for the *287 proper running of the ship in the event of danger. Failure to comply with those and other measures, and with different types of order, constitutes a very serious infringement. Captains must record infringements of the Law in the logbook. According to Art.610 of the Commercial Code (Código de Comercio), the office of captain includes the power to impose penalties on those who fail to carry out orders or maintain discipline. The captain must conduct the appropriate preliminary criminal proceedings in relation to any offences committed on board while at sea and must hand over the file to the competent authorities at the first port where the ship puts in.

Pursuant to Art.700 of the Commercial Code, passengers shall, without any distinction, comply with the instructions given by the captain in all matters concerning the maintenance of law and order on board."

(b) Rules relating to the authority to attest documents and the registration of facts establishing personal civil status and governing steps to be taken in the

event of a death on board Under Arts 52, 722 and 729 of the Civil Code, the captain or commander of a ship may, in certain circumstances, solemnise marriages and legalise wills. The captain or commander must keep any wills in safekeeping and hand them to the local maritime authority. In accordance with Art.19 of the Law on Civil Registration (Ley de Registro Civil), births, marriages and deaths which occur, inter alia, during a sea voyage may be recorded by the authorities and officials stipulated in the regulations. Declarations made in such birth certificates have the same force as those recorded in the register. Under Art.71 of the Civil Registration Regulations (Reglamento del Registro Civil), where a birth, marriage or death occurs during a sea voyage, the certificate pursuant to which such an event is registered shall be legalised by the commander, captain or master. Article 72 of the Civil Registration Regulations provides that the aforementioned persons have the same duties and powers as a registrar in relation to recording births, deaths and miscarriages, to determining family relationships, and to authorising burials. In accordance with Art.705 of the Commercial Code, where a passenger dies during a voyage, the captain must issue a death certificate and, after twenty-four hours have passed, he is entitled to take such measures concerning the corpse as are necessary in the circumstances. Under Art.627 of the Commercial Code, in the event that the captain is incapacitated, the first officer shall deputise for the captain and assume all his powers, duties and responsibilities.

III-- The main proceedings and the questions referred for a preliminary ruling AG12 Under Spanish law, the Third Chamber of the Tribunal Supremo--the referring court--hears actions for nullity brought, under specified conditions, by natural or legal persons against general provisions adopted by the Consejo de Ministros *288 (Council of Ministers), including Royal Decrees. In this type of proceedings, the court considers whether the disputed general provision has formal or substantive defects which render it contrary to the law and, if so, declares the provision void. AG13 In the main proceedings, the Colegio de Oficiales de la Marina Mercante Española (Spanish merchant navy Officers Association; Colegio de Oficiales) brought an action for annulment against certain provisions of Royal Decree No 2062/1999, in particular Art.8(3) thereof. AG14 The Colegio de Oficiales is of the opinion that the provision concerned, under which citizens of other Member States are entitled to command certain types of merchant ships, prejudices the interests of the Colegio and the collective interests of Spanish merchant navy officers, and also infringes higher legislation, in particular Art.77 of Law No.27/1992. AG15 As the referring court observes in the order for reference, an important feature of the law governing access to the posts of captain and first officer on Spanish merchant ships is the absolute reservation of such posts to Spanish nationals in Art.77(2) of Law

No.27/1992--which refers to the exercise, even on an occasional basis, of public duties--and in Art.8(2) of Royal Decree No.2062/1999. In that regard, the referring court makes the presumption--which is not disputed by the parties to the main proceedings--that captains and first officers on merchant ships occasionally carry out public duties connected with safety and policing powers or duties which, in Spain, are usually restricted to civil servants. AG16 In addition, Art.8(3) of Royal Decree No.2062/1999 provides, in some measure by way of derogation from the general nationality restriction, that, in the case of certain merchant navy ships, nationals of other Member States may be eligible to take up such posts under certain conditions. AG17 In that regard, the referring court points out that such a system appears to be based on a relativised concept of the exercise of public duties by the captains of merchant ships. The limitation of the reservation is justified because it may be assumed that a captain's powers are diminished in such circumstances and that the public duties which are generally assigned to captains are exercised on rare or almost hypothetical occasions. The referring court also points out that when the measure was being drawn up, it initially contained a provision under which the command of merchant ships shall not be regarded as the exercise of public duties. However, the Colegio de Oficiales objected and that wording was not included in the final draft. AG18 In that connection, the referring court enquires whether, in the light of Art.39 EC and the relevant case law of the Court of Justice, it is compatible with Community law for a Member State to reserve to its own nationals the posts of captain and first officer on merchant ships, and, if the answer is in the affirmative, whether such a reservation is lawful in relation to all types of merchant ships or only in relation to certain types, where there is a presumption that the holders of those posts may occasionally carry out duties on board which are connected with safety and policing powers or duties which, in Spain, are usually restricted to civil servants. AG19 As regards the relevance of that question to the outcome of the main proceedings, the referring court observes that, should an absolute nationality restriction be held to be lawful, Art.8(2) of Royal Decree No.2062/1999 and Art.77(2) of Law No.27/1992 (and the 15th Additional Provision thereof), which *289 provide for the reservation of posts to Spanish nationals, must be regarded as compatible with Community law, which would mean that the limited nationality restriction contained in Art.8(3) of Royal Decree No.2062/1999 would comply fully with Community law. AG20 The referring court adds that a possible conflict with Art.77(2) of Law No.27/1992 would not of itself render Art.8(3) of Royal Decree No 2062/1999 unlawful, provided that the actual scope of that provision is based on a requirement of Community law. AG21 As regards the condition of reciprocity set out in Art.8(3) of Royal Decree No 2062/1999, the referring court states that, in its view, it is not possible to restrict access to the posts of captain or first officer on certain merchant ships by means of a such a condition if Member States must guarantee access to nationals of other Member States. AG22 In those circumstances, the Spanish Tribunal Supremo (Third Chamber) stayed the proceedings and, by order dated October 4, 2001, referred the following questions to the Court of Justice for a preliminary ruling under Art.234 EC: "(1) Do Art.39 EC (formerly Art.48 of the EC Treaty) and Arts 1 and 4 of Regulation 1612/68 of the Council of October 15, 1968 on freedom of movement for workers within the Community permit a Member State to reserve the posts of captain and first officer of its merchant ships to its own nationals? If the reply is in the affirmative, may that reservation be formulated in absolute terms (for all types of merchant ships) or is it valid only in cases in which it is foreseeable and reasonable that it may be necessary for captains and first officers on board actually to carry out certain public duties?

(2) If the national provisions of a Member State exclude from the reservation of those posts to its nationals certain commercial shipping situations (defined on the basis of factors such as the gross tonnage of the ship, the cargo or number of passengers and the characteristics of its voyages) and, in those situations, allow citizens of other Member States of the European Union to have access to the posts in question, may that access be made subject to the condition of reciprocity?"

IV-- The first question AG23 It is apparent from the order for reference that, by its first question, the referring court essentially seeks to ascertain whether the system for relaxing the nationality restriction, set out in Art.8(3) of Royal Decree No.2062/1999, meets a requirement of Community law. AG24 In the context of Art.234 EC, the Court has no jurisdiction to decide either as to the interpretation of the provisions of national laws or regulations or their conformity with Community law. It may however supply the national court with a ruling on the interpretation of Community law to enable that court to resolve the *290 legal problem before it. [FN3] In addition, the Court may, where appropriate, reformulate the questions referred to it. [FN4] FN3 Teckal ( C-107/98): [1999] E.C.R. I-8121 at [33], and Distribuidores Cinematográficos ( C-17/92): [1993] E.C.R. I-2239 at [8]. FN4 Krüger ( C-334/95): [1997] E.C.R. I-4517; [1998] 1 C.M.L.R. 520 at [23]. AG25 In the light of the information contained in the order for reference, it is appropriate to summarise and reformulate the first question as follows: "Must Art.39 EC and Arts 1 and 4 of Regulation 1612/68 be construed as authorising Member States to reserve to their own nationals the posts of captain and first officer, as envisaged in Art.8(3) of Royal Decree No 2062/1999?"

A-- Main arguments of the parties AG26 Written observations in these proceedings were submitted by the Spanish, German, French, Greek, Danish, Italian and Norwegian Governments and by the Commission. AG27 With the exception of the Norwegian Government, all the parties essentially take the view that reservation by a Member State to its own nationals of the posts of captain and first officer in the merchant navy is compatible with Art.39 EC. AG28 In support of that view they rely in the main on the derogation relating to employment in the public service, contained in Art.39(4) EC, and point out that, in accordance with settled case law--and with the Commission Notice-- [FN5], that derogation should be regarded as extending to posts which involve direct or indirect participation in the exercise of powers conferred by public law, whose purpose is to safeguard the general interests of the State or of other public authorities, and which, for that reason, involve a special relationship of allegiance to the State on the part of persons occupying them, and the reciprocity of rights and duties which form the foundation of the bond of nationality. The governments concerned and the Commission submit that, on those grounds, as employees in the public service, captains in the merchant navy (and first officers who deputise for them) are covered by the derogation in Art.39(4) EC by reason of the powers and duties conferred by public law which are

connected to their posts. FN5 Commission Notice 88/C 72/02, Freedom of movement of workers and access to employment in the public service of the Member States--Commission action in respect of the application of Art.48(4) of the EEC Treaty: [1988] O.J. C72/2. AG29 Referring specifically to those powers and duties, the Spanish Government observes that a feature of the post of captain in the merchant navy is its dual legal status. On the one hand, as a member of senior management, the captain has a special employment relationship with the shipping company. As such, he has extensive managerial and representational powers on board the ship, which is regarded as an independent workplace. On the other hand, the Spanish Government cites a number of statutory provisions under which captains are required to carry out safety and policing duties, and duties relating to the attestation of documents and civil registration. In that sense, captains carry out public duties and, *291 in doing so, resemble the civil servants who usually perform such tasks (police officers, judges, registry officials, etc.). AG30 The other parties put forward similar arguments and observe that, in most Member States, captains have been granted powers under public law, particularly in regard to policing, and that, unlike the rest of a ship's crew, they exercise special public duties. The parties concerned base that view on the particular demands of the voyage, resulting from the heightened level of risk on the high seas and, above all, from the fact that the ship may not be within the reach of the national authorities. Accordingly, as the Greek Government notes, since a ship is a floating city, it needs a representative of the State and the public interest, or, as the Commission puts it, an on-board public authority in the person of the captain. AG31 By contrast, the Norwegian Government claims that the official authority traditionally vested in ships' captains is very restricted and of little objective importance in relation to the application of the derogation in Art.39(4) EC. The Norwegian Government points out that present-day technical capabilities mean that there is less need to invoke such authority than in the past when voyages were longer in duration and it was more difficult to obtain instructions from national authorities. Moreover, nowadays more than half of all ships fly flags of convenience, and no major difficulties have resulted from the fact that neither the crew nor the captain of such ships hold the nationality of the flag State. AG32 Conversely, the Spanish and German Governments argue that modern methods of communication are no substitute for the physical presence of a representative of the State who is empowered to take decisions. AG33 For its part, in support of the lawfulness of a nationality restriction applying to the posts of captain and first officer, the Commission relies on the official authority with which those posts are imbued under the Convention on the Law of the Sea. In accordance with the Convention, every State must effectively exercise its jurisdiction--which is exclusive on the high seas-- over each ship flying its flag, and its master, officers and crew. Since ships possess the nationality of the flag State, a genuine link must be established between the State and the ship. For those reasons, States have conferred on captains, and those who deputise for them, wide powers which they exercise in the name of those States. AG34 The German and Spanish Governments also cite the specific responsibilities of the flag State deriving from international law, in particular the Convention on the Law of the Sea, which require on the part of captains a special loyalty that arises only in the context of a bond of nationality. AG35 Several parties have also expressed views as to whether the post of a captain

who is employed by a private shipping company also comes under the derogation in Art.39(4) EC in the light of the judgments of the Court in Cases C-283/99 [FN6] and C-114/97, [FN7] in which it was held that the concept of employment in the public service does not encompass employment by a private natural or legal person. FN6 Commission v Italy: [2001] E.C.R. I-4363 at [25]. FN7 Commission v Spain: [1998] E.C.R. I-6717; [1999] 2 C.M.L.R. 701. AG36 In that regard, the Commission considers that, although the Court was seeking to give a general interpretation, that case law is not necessarily transposable to the particular situation of captains. In fact, the present case differs from the cases on which the Court has ruled so far, in that ships may leave the jurisdiction of the *292 public authorities, where the latter are defined in the strict sense. In those circumstances, there would appear to be grounds for regarding an individual as a public service employee, even if he has no institutional link to the administration, where he has been granted the powers required for the exercise of official authority in the general interests of the State. AG37 The French, Danish, Greek and German Governments broadly share that position. AG38 The French Government observes that the security firm employees with whom the cases cited were concerned did not exercise official authority and carried out their activity, which is ancillary to official authority, exclusively for a private employer, whereas merchant navy captains are granted powers under public law which they exercise on behalf of the State rather than the shipping company. AG39 The Greek Government adds that a captain's contract of employment with the merchant navy includes elements of both private and public law. Although the contract is clearly concluded between the captain and the shipping company, there is also involvement on the part of the public authorities because they verify a captain's qualifications and enter the contract in the public register. If it were solely a private relationship and captains were not invested with official authority, the State would be obliged to send a civil servant on board each ship to safeguard general public interests. AG40 The German Government is also of the view that, while captains are not, strictly speaking, public service employees, they are, indirectly, authorised agents ( beliehenes Organ) of the State administration. That accords with the functional concept of administration, which is the basis for settled case law of the Court. AG41 Accordingly, as concerns the question whether the nationality restriction is lawful only in cases in which it is foreseeable and reasonable that it may be necessary for captains and first officers actually to carry out certain public duties, the Spanish Government proposes that the answer should be in the affirmative. The Spanish Government goes on to state that it derogated from the general nationality restriction in favour of Spanish captains in the cases referred to in Art.8(3) of Royal Decree No.2062/1999, where the likelihood of having to exercise public authority is very remote. At the hearing, the Spanish Government pointed out that the ships referred to in that provision are smaller ships with a limited operational range which sail within Spanish territorial waters, which means that it is possible to delay slightly the adoption of acts involving the exercise of powers conferred by public law. The ships concerned are involved in the leisure and tourism sector and, for example, operate excursions around the Canary Islands or the Balearic Islands. AG42 By contrast, the other parties submit that, where a Member State has granted captains powers under public law and entrusted them with official powers to represent the State, factors such as the size of the ship or the likelihood that such powers will be

exercised cannot be conclusive. The public duty of State representation is, in fact, permanent in nature, and the only relevant factor is whether or not a captain may exercise the powers and duties concerned. The fact that those powers and duties may be of marginal importance or give a public stamp to the post is immaterial. AG43 Finally, the Spanish, French, Greek and Italian Governments rely, in the alternative,--or, in the case of the Italian Government, in the main--on the *293 derogation on grounds of public policy, public security or public health, referred to in Art.39(3) EC. AG44 In support of that view, the Spanish and French Governments cite the reply of the Commission to Written Question No 2710/96 from Mr Klaus Rehder in regard to the Spanish Shipping Register. [FN8] FN8 [1997] O.J. C83/53. AG45 However, the Commission contends that those grounds cannot be relied on in this case. It is clear from the case law of the Court [FN9] and from Directive 64/221 [FN10] that those grounds apply only to national measures relating to the private conduct of individuals, and, accordingly, the derogation may not be relied upon to exclude a whole field or profession from the application of the principle of freedom of movement by claiming that a captain must maintain public order and safety on board. FN9 Judgment in Commission v Spain, cited above, at [42]. FN10 Council Directive 64/221 of February 25, 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health: [1963-1964] Spec. Ed. 117.

B-- Assessment AG46 The referring court states that captains and first officers in the Spanish merchant navy are employed by shipping companies. Accordingly, access to such posts is, in general, subject to the provisions of Community law governing freedom of movement for workers. AG47 In particular, under Art.39(2) EC, freedom of movement for workers also entails a prohibition of discrimination as regards access to employment. Given that a nationality restriction relating to the posts of captain or first officer on a merchant ship is clearly a discriminatory limitation on access to employment, it can only be compatible with the principles that workers should enjoy freedom of movement and not be discriminated against on the basis of the derogations in Art.39(3) and (4) EC. AG48 The same may be said of Arts 1 and 4 of Regulation 1612/98, which are cited in the question referred for a preliminary ruling, since these measures only clarify and give effect to certain aspects of the right to take up employment conferred by Art.39 EC. [FN11] FN11 In that connection, see the judgments in Clean Car Autoservice ( C-350/96): [1998] E.C.R. I-2521; [1998] 2 C.M.L.R. 637 at [17], and Scholz ( C-419/92): [1994] E.C.R. I-505; [1994] 1 C.M.L.R. 873 at [6]. AG49 Accordingly, it is appropriate to examine next whether a nationality restriction attaching to the posts of captain and first officer on Spanish merchant navy ships is

lawful on the basis of the derogations referred to in Art.39(3) and (4) EC. Since Art.39(3) EC may only apply to the extent that the derogation relating to employment in the public service under Art.39(4) EC does not apply, [FN12] I shall examine the latter provision first. FN12 Commission v Belgium ( 149/79): [1980] E.C.R. 3881; [1981] 2 C.M.L.R. 413 at [10].

1. The derogation relating to employment in the public service under Art.39(4) EC

AG50 Art.39(4) EC excludes employment in the public service from the application of the rules governing freedom of movement for workers, thereby allowing Member *294 States to exclude nationals of other Member States from access to posts in that sphere. [FN13] FN13 Commission v Greece ( C-187/96): [1998] E.C.R. I-1095 at [17]; Grahame and Hollanders ( C-248/96): [1997] E.C.R. I-6407 at [32]; Commission v Belgium, cited above; and Sotgiu ( 152/73): [1974] E.C.R. 153 at [3]. AG51 The referring court also points out that the Court has already ruled on the admissibility of a nationality condition attaching to posts in shipping, specifically in the merchant navy, in regard to the application of the principle of freedom of movement for workers. AG52 In Commission v Belgium, the Court ruled that there had been a failure to comply with the Treaty in that certain posts in shipping were reserved to Belgian nationals. However, in accordance with the application submitted by the Commission, the posts of captain and first officer were not part of the subject-matter of the dispute in those proceedings and, therefore, they were not referred to in the operative part of the judgment. [FN14] FN14 Commission v Belgium ( C-37/93): [1993] E.C.R. I-6295 at [1] and operative part. AG53 In Commission v Greece, the Court held that a general nationality condition applicable, inter alia, to all posts in shipping was not covered by the derogation in Art.39(4) EC. AG54 In support of its ruling, the Court stated that the majority of posts in the area of, inter alia, sea transport are remote from the specific activities of the public service. [FN15] FN15 Commission v Greece ( C-290/94): [1996] E.C.R. I-3285; [1997] 2 C.M.L.R. 999 at [34]. AG55 However, in Commission v Greece, the Court did not rule out the possibility that certain posts in that field might be covered by the derogation in Art.39(4) EC. AG56 Before undertaking a closer examination of each of the legal issues raised in these proceedings, I will summarise briefly the main elements of the interpretation of Art.39(4) EC given by the Court.

(a) Interpretation of the concept of employment in the public service according to general case law

AG57 Recent case law and the fact that, as the referring court and the Spanish Government point out, captains and first officers on Spanish merchant navy ships are employees of private shipping companies have led the parties to revive the old debate concerning whether the interpretation of the notion of employment in the public service referred to in Art.39(4) EC should be functional or institutional. AG58 It should be noted at the outset that, since Art.39(4) EC is a derogation from the general principle that workers should enjoy freedom of movement and not be discriminated against, the concept of public service must be interpreted restrictively. [FN16] FN16 Commission v Italy ( 225/85): [1987] E.C.R. 2625; [1988] 3 C.M.L.R. 635 at [7], and Lawrie-Blum ( 66/85): [1986] E.C.R. 2121; [1987] 3 C.M.L.R. 389 at [28]. AG59 Furthermore, the concept of public service within the meaning of Art.39(4) EC requires uniform interpretation and application throughout the Community, in order to ensure that the effectiveness and scope of the provisions of the Treaty on freedom of movement of workers and equality of treatment of nationals of all Member States shall not be restricted by interpretations of the concept of public *295 service which are based on domestic law alone and which would obstruct the application of Community rules. [FN17] FN17 Commission v Belgium ( 149/79), cited above, at [12] & [19]. AG60 As the Court has held, the demarcation of that concept cannot be left entirely to the discretion of the Member States. [FN18] FN18 Commission v Luxembourg ( C-473/93): [1996] E.C.R. I-3207; [1996] 3 C.M.L.R. 981 at [26], and Commission v Belgium ( 149/79), cited above, at [18]. AG61 Therefore, the nature of the legal relationship between an employee and the administration which employs him must not be regarded as conclusive, because the legal designations concerned can be varied at the whim of national legislatures and cannot therefore provide a criterion for interpretation appropriate to the requirements of Community law. [FN19] FN19 Sotgiu, cited above, at [5], and Commission v France ( 307/84): [1986] E.C.R. 1725; [1987] 3 C.M.L.R. 555 at [11]. AG62 In any event, the interpretation of Art.39(4) EC must be functional, meaning that it must take account of the nature of the tasks and responsibilities inherent in the post. [FN20] FN20 Commission v Luxembourg at [28], and Commission v France at [12], both cited above. AG63 Only those posts which are typical of the specific activities of the public service may fall within the cope of Art.39(4) EC. [FN21] FN21 Commission v Luxembourg at [27], and, prior to that, Commission v Belgium ( 149/79) at [12], both cited above.

AG64 It is settled case law of the Court that such posts must include those which involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. [FN22] The Court has held that such activities include those which presume on the part of those occupying them the existence of a special relationship of allegiance to the State and the reciprocity of rights and duties which form the foundation of the bond of nationality. [FN23] FN22 Commission v Greece ( C-290/94) at [34], Lawrie-Blum at [27], and Commission v Belgium ( 149/79) at [10], all cited above. FN23 Commission v Greece ( C-290/94) at [2], Lawrie-Blum at [28], and Commission v Belgium ( 149/79) at [10], all cited above. AG65 However, the functional interpretation given by the Court notwithstanding, posts which, from an institutional standpoint, are not capable of belonging to the public service are clearly excluded from the scope of the derogation in Art.39(4) EC, irrespective of the duties they involve. AG66 That follows from the most recent-case law on Art.39(4) EC, to which the Commission has referred in particular. In Case C-114/97, the Court in fact held that Art.39(4) EC did not apply--unlike the derogation contained in Art.45 EC, and did not analyse the powers and duties concerned but simply stated that private security firms do not form part of the public service. [FN24] FN24 Commission v Spain, cited above, at [33] & [35] et seq. AG67 Finally, in the judgment in Case C-283/99, the Court specifically distinguished the derogation in Art.39(4) EC from the provisions of the Treaty relating to freedom of establishment and freedom to provide services, which contain derogations in respect of activities connected with the exercise of official authority, declaring that the concept of employment in the public service does not encompass employment by a private natural or legal person, whatever the duties of the employee. *296 [FN25] FN25 Commission v Italy, cited above, at [25]. Emphasis added. See also the observations of AG Jacobs at point 26 of his Opinion in that case, to which the Court refers in the passage concerned. AG68 That declaration by the Court is clear and unambiguous. There is no question but that the Court excluded the security guards concerned from the scope of Art.39(4) EC for the sole reason that they were employed by a private-law body. AG69 Furthermore, that criterion for interpretation which, in principle, relates to the organisational or institutional nature of the post, does not necessarily conflict with the earlier case law of the Court. AG70 It can be deduced from that earlier case law that the aim of the functional criterion is to ensure that the derogation laid down in Art.39(4) EC does not apply to posts which, whilst coming under the State or other organisations governed by public law, still do not involve any association with tasks belonging to the public service properly so called. [FN26] Moreover, that is the case despite the fact that authorities acting under powers conferred by public law have assumed responsibilities of an economic and social nature or are involved in activities which are not identifiable with the functions which are typical

of the public service. [FN27] FN26 Commission v Luxembourg at [2], and Commission v Belgium ( 149/79) at [10] & [11], both cited above. FN27 Commission v Belgium ( 149/79), cited above, at [11]. AG71 Accordingly, prior to the judgment in Case C-283/99, the Court rejected a purely institutional interpretation only in the sense that the exception derogation under Art.39(4) EC would cover all posts having a (merely) organisational link to the institutions of the State. AG72 The functional and institutional criteria for determining whether posts belong to the public service are not mutually exclusive. Instead, they complement one another to form the sort of restrictive criterion for interpretation which should be applied in cases where, as in Art.39(4) EC, there is a derogation from the principle that workers should enjoy freedom of movement and not be discriminated against. Accordingly, the question whether or not that derogation is applicable must be examined both from an institutional and a functional perspective.

(b) The specific points of law raised in this dispute AG73 Consequently, although, according to case law, the presumption should be that, in principle, employment by a private-law body is not covered by the derogation in Art.39(4) EC, some of the parties have claimed--rightly, in my opinion--that employment on board a ship differs from typical posts on dry land to the extent that it is appropriate to question whether a purely institutional criterion should be applied to captains. AG74 In that connection, the specific feature of this case is not so much the fact that there is an increased risk during sea crossings but rather that ships are able to leave the territory of jurisdiction of the flag State, meaning that they are out of reach of the national authorities through which the flag State exercises its sovereignty. AG75 It is clear, inter alia, from Art.94 of the Convention on the Law of the Sea that ships are subject at all times to the jurisdiction and control of the flag State, even when they are outside that State's territorial jurisdiction. AG76 Accordingly, it would be appropriate to regard a ship as a floating part of the territory of the flag State. AG77 Realistically, official authority in relation to such a part may only be administered via the crew who are on board the ship. Accordingly, should the flag *297 State wish to exercise its official power of administration and have a representative of the State on board, the only way to do so would be to make use of the authorities who are present on the ship, such as the captain or the first officer. AG78 In those circumstances, I do not consider it correct that, as a general principle, the post of ship's captain should be excluded from the public service merely on the ground that, formally speaking, the post involves an employment relationship with a private undertaking rather than with the State. AG79 Accordingly, it must be stated by way of a provisional conclusion that it is not possible to exclude Art.39(4) EC from applying to ships' captains and their representatives merely on the ground that they are employees of private natural or legal persons. AG80 However, as regards the posts at issue in these proceedings, the referring court and the Spanish Government state that the merchant navy ships referred to in Art.8(3) of Royal Decree No.2062/1999, the provision which is the subject of the dispute in the main

proceedings, operate exclusively within the territorial waters of the flag State or between ports or territories over which the flag State exercises its jurisdiction. AG81 Thus, the premise on which the above considerations relating to the applicability of Art.39(4) EC are based--that the ship may leave the jurisdictional territory of the State and not be subject to the control of the competent national authorities--does not appear to arise in relation to the disputed posts. AG82 One must then consider, however, whether, from a functional point of view--in other words, by reference to the nature of the duties inherent in them--, the posts referred to in the first question are covered by the concept of public service for the purposes of Art.39(4) EC. AG83 There is no doubt that, as regards the actual (corporate and technical) management of a ship, the activity of a captain or first officer on a merchant navy ship is not by nature a public service activity. However, it has been claimed that such posts also entail duties of State representation. AG84 According to case law, the question whether the activity of captain entails duties belonging to the public service must, as I have already indicated, be examined in the light of the criteria relating to the exercise of powers conferred by public law and the need to safeguard the general interests of the State, the specific definition of which the Court has yet to rule on. AG85 That approach is not without difficulties, since those concepts cannot be defined by reference to the appropriate rules of national law either, because Art.39(4) EC must be interpreted uniformly. AG86 In any event, it is appropriate to assume that the expression powers conferred by public law must refer to powers which exceed the powers exercisable by any individual and particularly--as an expression of the essence of State sovereignty--those powers relating to the exercise of the power of constraint. [FN28] FN28 See, in that connection, the definition of the concept of official authority provided by AG Mayras in his Opinion in Reyners ( 2/74): [1974] E.C.R. 631 at p.665; [1974] 2 C.M.L.R. 305 at p.316. See also the Opinion of AG Mancini in Commission v France ( 307/84): [1986] E.C.R. 1725 at p.1729; [1987] 3 C.M.L.R. 555 at p.560. AG87 At the same time, the Court routinely refers to the need to safeguard the general interests of the State. In view of the fact that the Court generally uses the conjunction and to link the criterion of participation in the exercise of powers *298 conferred by public law with that of safeguarding the general interests of the State, and since the concept of the public service must be interpreted restrictively, it has also been noted on several occasions that the two requirements must be fulfilled cumulatively. [FN29] FN29 See, for example, the Opinion of AG Léger in Commission v Greece at point 23, and the Opinion of AG Lenz in Lawrie-Blum ( 66/85), July 3, 1986: [1986] E.C.R. 2121 from p.2135, [1987] 3 C.M.L.R. 389 from p.408. AG88 With regard to the powers vested in the posts of captain and first officer in the Spanish merchant navy, I should first of all like to point out that the duties of captains relating to the application and fulfilment of public law obligations, at national, international or Community level,--or instructions, as the German Government calls them--relating to safety during a voyage and the protection of the environment are not akin to the exercise of official authority. AG89 It should also be noted, as the referring court and the parties observe, that captains and first officers in the Spanish merchant navy are assigned, as a matter of

course, policing duties in relation to persons on board, and in the fulfilment of those duties they are also authorised to impose penalties. That certainly amounts to more than merely making a contribution to the maintenance of public security, which any individual may be called upon or empowered to do. [FN30] FN30 See the findings of the Court in paras [36] & [37] of the judgment in Commission v Spain, cited above, in relation to the exercise of official authority under Art.45 EC, which can be applied in full to this case. AG90 Moreover, under the applicable Spanish provisions, merchant navy captains and the officers who deputise for them are authorised to perform duties relating to civil status and the notarial authority to attest documents, which are based on the general public interest rather than solely on the needs inherent in commanding a ship. AG91 On the whole, therefore, I would not dispute that the duties and powers laid down in Spanish law constitute official powers and authority aimed at protecting the general interests of the State, within the meaning of the case law of the Court. AG92 At the same time, however, I would dispute the view put forward by the Commission and some of the other parties who argue that the fact that such powers and duties are laid down in the national law of the Member State in question is a sufficient basis for automatically classing an activity as administrative. AG93 Rather, in my opinion, it is necessary to adopt a global view based on the duties which are actually connected to the post. AG94 Otherwise, owing to the powers which unquestionably fall to each Member State to organise its administration as it deems necessary and to imbue certain posts with official authority, there would be a risk that the existence of such official authority, which, in practice, has no relevance or (no longer has) any practical importance, might be used to justify derogations from the scope of the principle of freedom of movement for workers. In that way, each Member State would theoretically be able to prohibit workers from taking up certain types of activity, and that does not appear to be compatible with the requirement that the derogation relating to posts in the public service must be applied restrictively and uniformly. AG95 Bearing in mind, therefore, that Art.39(4) EC is a derogation from the principle of free movement and that its scope must be restricted to what is strictly necessary, [FN31] I do not consider that excluding a post from the principle of freedom of *299 movement for workers on the ground that it constitutes employment in the public service, because of the powers conferred by public law and the duties normally vested in it, amounts to a correct application of the derogation. FN31 Commission v Italy ( 225/85) at [7], and Lawrie-Blum at [28], both cited above. See also the Opinion of AG Lenz in Lawrie-Blum, from p.2136 E.C.R.; from p.408 C.M.L.R., cited above, which refers to the principle of proportionality in this context. AG96 The information provided by the referring court and the Spanish Government shows that the posts of captain and first officer in the Spanish merchant navy, referred to in the disputed provisions in the main proceedings, are posts in which the exercise of official authority is of little or no practical importance. AG97 Having examined all the powers and duties actually connected to the posts of captain and first officer in the Spanish merchant navy, in accordance with Art.8(3) of Royal Decree No 2062/1999, I therefore conclude that such posts do not meet the very strict conditions required for application of the derogation from the principle of freedom of movement for workers under Art.39(4) EC.

2. Whether the nationality restriction can be justified under Art.39(3) EC AG98 As regards the derogation contained in Art.39(3) EC, the case law of the Court of Justice is clear that an exclusion of access to cetain occuptions--in this case those of captain and first officer in the merchant navy--as general as a nationality requirement cannot be justified on the grounds of public policy, public security or public health within the meaning of that article, even if that requirement applies only to certain categories of such posts. [FN32] FN32 Commission v Spain, cited above, at [40]-[42], and Gül ( 131/85): [1986] E.C.R. 1573; [1987] 1 C.M.L.R. 501 at [17]. AG99 The right of Member States to restrict freedom of movement for persons on those grounds is not intended to exclude certain economic sectors or professions from the application of that principle. [FN33] FN33 ibid. AG100 Accordingly, it does not follow from Art.39(3) EC that it is lawful to lay down a total or partial nationality restriction applicable to posts such as those of captain and first officer in the Spanish merchant navy. AG101 In the light of all the above, the answer to the first question must be that Art.39 EC and Arts 1 and 4 of Regulation 1612/68 must be construed as meaning that a Member State is not entitled to reserve, in a provision such as Art.8(3) of Royal Decree No 2062/1999, the posts of captain and first officer on merchant ships to its own nationals.

V-- The second question

A-- Main arguments of the parties AG102 The parties generally agree that, while Member States definitely have the right to reserve the disputed posts to their own nationals under Art.39(4) EC, they are also entitled to waive that right in whole or in part. The parties disagree, however, over whether, if that right is waived and if there is a total or partial lifting of the restriction on access to those posts, it is necessary to comply with certain rules of Community law which might preclude, for example, the imposition of a condition of reciprocity. AG103 The Spanish Government contends that the nationality restriction constitutes a right which the Member States are entitled to exercise or restrict under their own *300 conditions. The Greek and Danish Governments are of the view that, if the unlimited nationality restriction is ruled to be lawful, then the same reply must automatically be given to the second question. AG104 Citing Case 149/79, [FN34] the French Government argues that it is for the Member States alone to lay down rules governing the posts which fall within the scope of Art.39(4) EC, from which it follows that they are free to permit nationals of other States to have access to those posts and to lay down the conditions which they consider to be suitable, including the condition of reciprocity. FN34 Commission v Belgium ( 149/79) cited above, at [10]. AG105 By contrast, the Commission considers that if there is a partial lifting of the

nationality restriction, there must be compliance with the provisions of Community law. Relying on the case law of the Court, [FN35] the Commission submits that the condition of reciprocity in the context of access to the disputed posts is incompatible with the principle of equal treatment. FN35 Frilli ( 1/72): [1972] E.C.R. 457; [1973] C.M.L.R. 386 at [19], and Cowan ( 186/87): [1989] E.C.R. 195; [1990] 2 C.M.L.R. 613 at [20]. AG106 The Norwegian Government cites Case 152/73 [FN36] in support of its contention that the very fact that nationals of other Member States are admitted to the posts in question shows that those interests which justify the exceptions to the principle of equal treatment are not at issue. The French Government counters that, unlike that case, these proceedings are not concerned with working conditions but with access to employment. FN36 Sotgiu, cited above, at [4].

B-- Assessment AG107 By its second question, the referring court essentially seeks to ascertain whether making access to the posts of captain and first officer subject to a condition of reciprocity, such as laid down in Art.8(3) of Royal Decree No 2062/1999, is compatible with the principle of freedom of movement for workers enshrined in Art.39 EC. AG108 As I have already pointed out in relation to the first question, posts such as those referred to in Art.8(3) of Royal Decree No 2062/1999 are not covered by the derogation concerning employment in the public service contained in Art.39(4) EC, from which it follows that, under Art.39 EC, a Member State is obliged to guarantee nationals of other Member States access to such posts which is free from any discrimination. AG109 It is clear from the settled case law of the Court that such access may not be made subject to a condition of reciprocity. According to the case law concerned, implementation of the obligations imposed on Member States by the EC Treaty or secondary legislation cannot be made subject to a condition of reciprocity. [FN37] FN37 Commission v Italy ( C-142/01): [2002] E.C.R. I-4541 at [7]. See also the judgments in Portugal v Commission ( C-163/99): [2001] E.C.R. I-2613; [2002] 4 C.M.L.R. 31 at [22]; Commission v Italy ( C-101/94): [1996] E.C.R. I-2691; [1996] 3 C.M.L.R. 754 at [27]; Commission v Germany ( 325/82): [1984] E.C.R. 777; [1985] 2 C.M.L.R. 719 at [11]; and Commission v France ( 232/78): [1979] E.C.R. 2729; [1980] 1 C.M.L.R. 418 at [9]. AG110 Accordingly, the answer to the second question must be that access to posts such as those at issue in the main proceedings may not be made subject to a condition of reciprocity. AG111 In the light of the foregoing considerations, I propose that the Court should give the following replies to the questions referred for a preliminary ruling: (1) Art.39 EC and Arts 1 and 4 of Regulation 1612/68 of the Council of October 15, 1968 on freedom of movement for workers within the Community must be construed as meaning that a Member State is not entitled to reserve, in a provision such as Art.8(3) of Royal Decree No 2062/1999, the posts of captain and first officer on merchant ships to its own nationals. (2) Access to such posts by nationals of other Member States may not be made subject

to a condition of reciprocity. JUDGMENT 1 By order of October 4, 2001, received at the Court on October 15, 2001, the Tribunal Supremo (Supreme Court) referred to the Court for a preliminary ruling under Art.234 EC two questions on the interpretation of Art.39 EC and Arts 1 and 4 of Council Regulation 1612/68 of October 15, 1968 on freedom of movement for workers within the Community. [FN38] FN38 [1968] O.J. Spec. Ed. II 475. 2 Those questions were raised in the course of an action for annulment brought by the Colegio de Oficiales de la Marina Mercante Española (Spanish Merchant Navy Officers' Association, hereinafter the Officers' Association) against Real Decreto 2062/1999, por el que se regula el nivel mÍnimo de formación en profesiones marÍtimas (Royal Decree No.2062/1999 on the minimum level of training of seafarers) of December 30, 1999 (BOE of January 21, 2000, hereinafter Royal Decree No.2062/1999). Legal background Community legislation 3 Under Art.39 EC: "1. Freedom of movement for workers shall be secured within the Community. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of *302 nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. 4. The provisions of this Article shall not apply to employment in the public service." 4 In addition, Art.1 of Regulation 1612/68 provides: "1. Any national of a Member State, shall, irrespective of his place of residence, have the right to take up an activity as an employed person and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State. 2. He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as nationals of that State." 5 Article 4 of that regulation provides: "1. Provisions laid down by law, regulation or administrative action of the Member States which restrict by number or percentage the employment of foreign nationals in any undertaking, branch of activity or region, or at a national level, shall not apply to nationals of the other Member States.

2. When in a Member State the granting of any benefit to undertakings is subject to a minimum percentage of national workers being employed, nationals of the other Member States shall be counted as national workers, subject to the provisions of the Council Directive of 15 October 1963 ..." International provisions 6 The United Nations Convention on the Law of the Sea, signed at Montego Bay on December 10, 1982, contains, in Pt VII entitled High Seas, Section I entitled General Provisions, which contains Arts 86 to 115 of the general provisions relating to navigation on the high seas. 7 Articles 91(1), 92(1), 94(1) to (3) and 97(1) and (2) of that convention provide, in particular: "Article 91 Nationality of Ships 1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. *303 ... Article 92 Status of Ships 1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. ... ... Article 94 Duties of the flag State 1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2. In particular every State shall: ... (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. 3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea, ... ... Article 97 Penal jurisdiction in relation to collision or in any other incident of navigation 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master's certificate or a certificate

of competence or licence shall alone be competent ... to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them." National legislation 8 Ley 27/1992, de Puertos del Estado y de la Marina Mercante (Law No.27/1992 on National Ports and the Merchant Navy), of November 24, 1992 (BOE, November 25, 1992, hereinafter Law No.27/1992), provides in Art.77, entitled Ships' Crews: "1. The number of crew-members and their professional qualifications must be adequate to ensure at all times the safety of navigation and of the ship, having regard to its technical and operational characteristics, in accordance with conditions which shall be laid down by regulations. 2. The conditions as to the nationality of ships' crews shall also be determined by regulation, although, from the entry into force of this Law, *304 citizens of Member States of the European Economic Community shall be eligible for employment as ships' crew, provided that such employment does not involve even on an occasional basis, the performance of public duties, which is reserved to Spanish citizens." 9 It is apparent from the 15th Additional Provision to Law No.27/1992 entitled Special register of ships and shipowners, that the master and the chief mate of ships entered on the special register established by that provision must have Spanish nationality. That register concerns only ships of owners whose control centre for the operation of the ships is in the Canaries or, if it is situated elsewhere in Spain or abroad, who have in the Canaries a permanent establishment or representation enabling them to exercise the rights and to perform the obligations provided for by the legalisation in force. Only civilian vessels of not less than 100 tonnes, employed in navigation for commercial purposes, excluding fishing vessels, may be entered on that register. 10 Article 8 of Royal Decree No.2062/1999 entitled Specific rules on the recognition of professional qualifications of citizens of the European Union with diplomas issued by one of the Member States, provides: "1. The Directorate General of the Merchant Navy may directly recognise the professional diplomas or specialisation certificates of citizens of the European Union issued by one of those States, in accordance with the applicable national provisions. 2. Recognition of a professional diploma, authenticated by the issue of a Merchant Navy professional ticket, will be required for direct access to employment as a crew-member on board Spanish merchant ships, except for posts which involve or may involve the performance of public duties assigned by law to Spaniards, such as those of master, skipper or chief mate, which shall continue to be reserved for Spanish citizens. 3. Notwithstanding the provisions of the preceding paragraph, citizens of the European Union who hold a diploma issued by a Member State may have command of merchant ships of less than 100 gross register tonnes, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas where Spain has sovereignty, sovereign rights or jurisdiction, provided that the person concerned can prove that Spanish citizens have reciprocal rights in the State of which he is a national." 11 Several provisions of Spanish law confer on masters of Spanish merchant navy ships public duties such as those relating to safety and public order, the notarising of documents and returns of births, marriages and deaths. 12 Thus, in relation to safety and law-enforcement duties, Arts 110, 116(3)(f) and 127 of the Law No.27/1992 empower masters, in exceptional circumstances, to take, in dangerous situations on board, all the public-order measures which they consider necessary for the safe progress of the vessel. Failure to comply with such measures and

instructions is a serious offence. The master is responsible for recording infringements of that provision in the ship's log. 13 Under Art.610 of the Código de Comercio ( Commercial Code), the master may, by virtue of the powers vested in his office, impose penalties on board on those who *305 disobey his orders or commit breaches of discipline. The offences and the measures taken must be recorded and the file transmitted to the competent authorities at the ship's first subsequent port of call. 14 Under Art.700 of the Commercial Code, all passengers must comply with the master's orders in relation to the maintenance of order on board. 15 In addition, in relation to the official certification or the registration of births, marriages and deaths, it is clear from Art.52 of the Código Civil ( Civil Code) that the master may, in certain circumstances, solemnise marriages and, from Arts 722 and 729 of that code, that he may receive wills and, if the testator dies on board, that he is responsible for ensuring the safekeeping of the will and its dispatch to the competent authorities. 16 Pursuant to Art.19 of the Ley de Registro Civil (Law on the registration of births, marriages and deaths), the authorities and officials designated by the implementing regulation may register births, marriages and deaths occurring, in among other circumstances, on a sea voyage. The facts stated in such birth certificates have the same probative value as those recorded in entries in registers of births, marriages and deaths. 17 Under Art.71 of the Reglamento del Registro Civil (Regulations on the register of births, marriages and deaths), the document by virtue of which births, marriages and deaths are registered may be drawn up by the ship's master when those events occur during a sea voyage. Article 72 of those regulations provides that the master has the same rights and obligations as a registrar to certify births, deaths and stillbirths and to establish affiliation, as well as to issue burial permits. 18 In accordance with Art.705 of the Commercial Code, the master must draw up the death certificate if a person dies on board and he is empowered, after a period of 24 hours, to take the necessary steps in relation to the body. 19 Under Art.627 of the Commercial Code, the chief mate assumes the master's rights, obligations and responsibilities in the event of the incapacity of the master. The dispute in the main proceedings 20 The Officers' Association brought an action before the Tribunal Supremo for the annulment of certain provisions of the Royal Decree No.2062/1999. 21 According to the Officers' Association, that decree, in particular Art.8(3) thereof, damages the collective interests of the officers of the Spanish merchant navy and is contrary to Art.77 of Law No 27/1992 and to the 15th Additional Provision to that law in so far as it allows nationals of other Member States to have command of certain Spanish vessels. 22 The Tribunal Supremo, finding that masters and chief mates of merchant ships occasionally perform public order duties or duties which, in Spain, are usually entrusted to public officials, enquires whether the fact that a Member State reserves such employment for its nationals is compatible with Art.39 EC and the Court's case law. 23 According to that court, if such a measure should be regarded as complying with Community law, Art.77(2) of Law No.27/1992, the 15th Additional Provision thereto and Art.8(2) of Royal Decree No.2062/1994, which reserve to Spanish nationals the posts of master and chief mate of merchant ships flying the Spanish *306 flag, should be deemed lawful. The same would be true, a fortiori, of Art.8(3) of Royal Decree No.2062/1999, which gives nationals of other Member States access to the posts of master and chief

mate on certain conditions and for certain vessels of the Spanish merchant navy. 24 The Tribunal Supremo observes, in that regard, that an exception to the measure reserving the posts of master and chief mate to the nationals of the flag State such as that provided for by Art.8(3) of Royal Decree No.2062/1999 can be justified by the fact that masters and chief mates exercise only rarely their powers of official authority while they are posted on board small vessels engaged on near-coastal navigation. 25 In addition, in the event that the Member States cannot maintain a measure reserving the posts of master and chief mate of ships flying their flag to their nationals and are required to offer the possibility for nationals of the other Member States to obtain access, in certain circumstances, to those posts, the Tribunal Supremo seeks to ascertain whether it is compatible with Community law to make that possibility subject to a condition of reciprocity, as laid down by Art.8(3) of the Royal Decree No.2062/1999. 26 It is in those circumstances that the Tribunal Supremo decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: "1. Do Article 39 EC ... and Articles 1 and 4 of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community permit a Member State to reserve the posts of master and chief mate of its merchant ships to its own nationals? If the reply is in the affirmative, may that reservation be formulated in absolute terms (for all types of merchant ships) or is it valid only in cases in which it is foreseeable and reasonable that it may be necessary for masters and chief mates on board actually to carry out certain public duties? 2. If the national provisions of a Member State exclude from the reservation of those posts to its nationals certain commercial shipping situations (defined on the basis of factors such as the gross register tonnage of the ship, the cargo or number of passengers and the characteristics of its voyages) and, in those situations, allow citizens of other Member States of the European Union to have access to the posts in question, may that access be made subject to the condition of reciprocity?" 27 It should be borne in mind, as a preliminary point, that Arts 1 and 4 of Regulation 1612/68 merely clarify and give effect to the rights already conferred by Art.39 EC. Accordingly, the latter article contains the only rules relevant in this case. [FN39] FN39 Scholz ( C-419/92): [1994] E.C.R. I-505; [1994] 1 C.M.L.R. 873 at [6]. The first question 28 By its first question, the referring court is asking, in essence, whether Art.39(4) EC is to be interpreted as meaning that it allows a Member State to reserve for its nationals the posts of master and chief mate of merchant ships flying its flag and *307 whether, in that regard, account must be taken of the fact that, for certain types of shipping, the performance by the master or chief mate of public-service duties within the meaning of Art.39(4) EC is limited and occasional. Observations submitted to the Court 29 The Spanish, Danish, German, Greek, French and Italian Governments and the Commission agree that the posts of master and chief mate of merchant ships flying a Member State's flag may, in accordance with Art.39(4) EC, be reserved for nationals of that Member State in so far as those holding such a post may, by virtue of the domestic law of that State and several international instruments, such as the United Nations Convention on the Law of the Sea, perform duties belonging to the public service within the meaning of that provision, as interpreted by the Court, concerning the maintenance

of safety and the exercise of police powers, as well as public certification and the drawing-up of certificates of births, marriages and deaths. 30 Those governments support their views by pointing to the increased potential risks on the high seas and the fact that ships there are beyond the reach of the public authorities, which necessitates the presence on board of a representative of the State, with decision-making power, in the person of the master. 31 Commission v Spain, [FN40] and Commission v Italy, [FN41] from which it is clear that the concept of employment in the public service does not encompass employment by a private natural or legal person, are not relevant, notwithstanding the fact that the master of a merchantman is employed by a private shipowner. According to the Danish, Greek, and French Governments and the Commission, what is important is that, even where there is no organic relationship with the administrative authorities, the master has powers conferred by public law for the purposes of the general interests of the State, which, as the German Government also submits, accords with the functional view of the public service underlying the Court's case law. FN40 Case C-114/97: [1998] E.C.R. I-6717; [1999] 2 C.M.L.R. 701 at [33]. FN41 Case C-283/99: [2001] E.C.R. I-4363 at [25]. 32 However, the Spanish Government submits that reserving the posts of master and chief mate of ships flying the flag of a Member State for nationals of that State is compatible with Art.39(4) EC only if the actual exercise of public duties is foreseeable and reasonable. That is the basis for Art.8(3) of Royal Decree No 2062/1999, which allows nationals of other Member States to have command of small and medium-sized Spanish ships the range of which is limited and which sail within Spanish territorial waters, so that acts in exercise of public law powers can easily be put off. Such is the case of vessels used mainly for leisure and tourism. 33 On the other hand, the Danish, Greek, French and Italian Governments and the Commission maintain that where the master of a vessel is entrusted by a Member State with powers under public law, the derogation provided for by Art.39(4) EC may validly be invoked irrespective of the vessel's size, the number of passengers, its itinerary, its proximity to national territory or whether the master will actually perform the public duties in question, such as may be performed on vessels of any type at any time, whenever the situation on board so requires. 34 *308 The Norwegian Government, after pointing out that, according to the Court's case law, Art.39(4) EC, as an exception to the principle of freedom of movement of workers, must be strictly interpreted, [FN42] wonders whether the public duties traditionally devolved on ships' masters enable it to be stated that a master nowadays participates, directly or indirectly, in the exercise of powers conferred by public law. The Norwegian Government observes that, because of current technology, the need to make use of such authority is less than it formerly was, when ships were in general much longer at sea and when it was much more difficult to obtain instructions from national authorities. Moreover, more than half of the world's fleet is these days registered under flags of convenience and the fact that neither the master nor the crews of such vessels possess the nationality of the flag State does not, in general, cause any particular problem. FN42 Sotgiu ( 152/73): [1974] E.C.R. 153. 35 The Spanish, Greek, French and Italian Governments submit, in the alternative, that

a Member State is entitled to reserve the posts of master and chief mate for its own nationals on the basis of Art.39(3) EC. 36 In that regard, the Commission contends